Out of the Darkness

By Sheldon Gordon
Network, Winter 2005

‘What is the purpose of the courts of law?’ asks Judge Ted Ormston of the Ontario Court of Justice. ‘It used to be to punish, to deter, to rehabilitate. Now, therapeutic jurisprudence realizes that an element of healing can also be involved. Often, it’s the first time people realize that their sickness has brought them before the courts. They have to deal with it, and the [Mental Health] Court can help in that process.’

That’s the fundamental premise behind Court 102, the Toronto Mental Health Court (MHC). Headquartered in a small, austere chamber in the basement of Toronto’s Old City Hall that once sat empty and unused, a new type of criminal justice court now convenes there every weekday.

Court 102 is the only MHC in Canada that sits on a full-time basis, five days a week, according to Judge Ormston, co-founder of the project. Started in 1998, it was just the second mental health court in North America (Fort Lauderdale, Florida, claims the first). While the U.S. now has 600 MHCs, and Australia and New Zealand have also instituted them, Court 102 remains the only one of its kind in Canada.

In the past two years alone, an estimated 3,000 to 5,000 accused persons, afflicted with a variety of mental illnesses, have appeared before the Toronto court. (The number on any given day ranges from two to 20.) ‘They may be depressed or psychotic, have Tourette’s Syndrome or engage in manic behaviour,’ says senior Crown attorney Paul Culver. ‘We see pretty well everything.’

Several judges take turns presiding over Court 102. In addition to legal professionals who wish to work with the mentally ill, the court also has mental health workers who do assessments on site, maintain files on ‘repeaters’ and try to contact their family members.

Their mental illnesses are not so severe, however, that the accused are unable to ‘understand the nature and consequences of their act’ (the definition of criminal insanity in section 16 of the Criminal Code). Nor are they so ill that they are unfit to stand trial. ‘These are usually people who have gone off their medications or don’t follow their treatment plans,’ says Culver. ‘They are usually charged with nuisance offences, such as breaking windows or stealing from stores.’ Violent offenders who are mentally ill are still processed through traditional criminal court.

The Toronto MHC has rarely, if ever, been the setting for a trial. Rather, it operates in the early stages of the criminal justice process when the accused has a bail hearing. ‘It was frustrating to see the same people keep coming back in,’ says Culver. ‘One of the few alternatives was not giving them bail. But little could be done with them except lock them up for short periods.

‘Now, psychiatrists attend at the courthouse prior to a decision being made on bail. It’s better than the system we had before.’ Ted Kelly, who has represented hundreds of clients in Toronto’s Mental Health Court, calls the tribunal ‘an unqualified success,’ praising ‘the speed with which matters are dealt with when people are ill, the support that they get.’

When mentally ill persons are arrested, they have to be assessed to determine if they are fit to stand trial. Before the MHC was created, a judge would see them first, then remand them back to the Don Jail; from there, they would go to the hospital about three days later. There they would be seen by a psychiatrist for about 25 minutes, be returned to the Don Jail for another three days and then finally appear in court.

‘The round trip took anywhere between 10 and 15 days,’ recalls Judge Ormston. ‘Now, we do that in five or six hours,’ because the Centre for Addiction and Mental Health has moved its Brief Assessment Unit to the courthouse, making early assessments possible.

‘If they are unfit and need to be assessed for a longer period, or can benefit from treatment, the process whereby they get into the hospital is just far faster,’ says Kelly. ‘And those who are found fit can sometimes be released on [bail] the same day, or the next day, while their charge is before the courts.

‘Why is it easier for people to get released? Because there are mental health support workers right there who can assist people and provide them with basic things, like clothing and referrals to community support programs and to shelter.’

While free on bail, the mentally ill offender is required to report back to the court weekly for an extended period. ‘We encourage them to keep on their programs,’ Judge Ormston says. ‘Then they come back to court monthly. About six months later, when they’re stabilized on their meds and doing well, the Crown attorney usually withdraws the charges against them. So they’re not criminalized by the process.’

Of course, not everyone who passes through MHC is able to regain a normal life. ‘We have our ‘frequent fliers,’’ says the judge, referring to the court’s repeat offenders. But he estimates that fewer than 10 percent of the accused fall into that category. ‘It’s far fewer than it was previously,’ he says, ‘and we’re finding that their appearances in court are becoming further apart.’

The MHC, he says, deals with a segment of society that ‘was formerly slipping through the cracks, as provincial criminal courts are asked to deal with more and more social problems, mental illness being one. They aren’t well treated in the regular adversarial court processes.

‘Mental Health Court allows us to step back, close the book and open your heart.’

This article is protected by copyright. It originally appeared in the November 2003 issue of National, the magazine of the Canadian Bar Association (www.cba.org/national).